7TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE BEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

v. ) CASE NO. 85-1135

)

JAMES S. STROZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 14, 1985, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Wings S. Benton, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: James S. Stroz, pro se

13696 Exotica Lane

West Palm Beach, Florida 33414 BACKGROUND_

By administrative complaint filed on March 14, 1985,petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board, has charged that respondent, James S. Stroz, a registered roofing contractor had violated various provisions within Chapter 489, Florida Statutes. Generally, petitioner has alleged that respondent subcontracted twenty roofing jobs to an unlicensed contractor in 1983 and 1984,1 and by doing so aided and abetted an uncertified or unregistered person in evading the requirements of Chapter 489, and failed to subcontract to a licensed contractor.

Petitioner alleges this conduct constitutes a violation of Subsections 489.113(3) and 489.129(1)(e) and (j), Florida Statutes. By motion filed on May 2, 1985, petitioner requested leave to amend its complaint by setting forth in detail the names of the twenty-one jobs in question. The motion was granted at the outset of the hearing.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings by petitioner on April 11, 1985, with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated April 24, 1985, the final hearing was scheduled for May 14, 1985, in West Palm Beach, Florida.

At final hearing petitioner presented the testimony of Henry L. Haywood, Lacy Davis, respondent and Edward R. Flynn and offered petitioner's exhibits 1-18. All were received in evi- dence. Respondent offered respondent's exhibit 1 which was received in evidence.

The transcript of hearing was filed on May 30, 1985.

Proposed findings of fact and conclusions of law were filed by petitioner on June 13, 1985. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

At issue herein is whether respondent's license as a registered roofing contractor should be disciplined for the alleged violations set forth in the administrative complaint.

FINDINGS OF FACT

1. At all times relevant hereto, respondent, James S. Stroz, held registered roofing contractor license number RC 0034849 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He was first licensed in November, 1979, and at that time qualified under the name of Stroz Roofing. A change in status application was later filed to qualify Stroz Roofing, Inc., 13696 Exotica Lane, West Palm Beach, Florida.

   
   

2. Although licensed as a roofing contractor, respondent's firm only performs work on wood shakes or shingles. He does not

   do hot roofs or flat roofs, which is another speciality in the roofing business. While working for a roofing firm in1979, Stroz became acquainted with Lacy Davis, an unlicensed individual who specialized in flat roof work. When Stroz started his own roofing company in 1983, he began contracting out the flat roof work to other licensed roofing contractors. Lacy Davis learned of this and approached Stroz offering his services on the flat roof work. Stroz knew Davis was unlicensed and would not initially hire him, but Davis gave him a business card of Henry Haywood, a licensed roofing contractor in Palm Beach County and explained he and Haywood were partners and that the work and permitting would be done under Haywood's license.

   In actuality, Haywood had not authorized Davis to use his business cards, or topull permits under his name. Indeed, Haywood had no knowledge of Davis' activities. Without verifying the truth of Davis' representations, and accepting them instead at face value, Stroz agreed to hire Davis to perform his flat roof work.

   
   

3. Between January 20, 1983 and September 30, 1984, Stroz performed some twenty-one jobs using Davis for the flat roof work. At all times, Stroz was under the impression that the work was being done under Haywood's license and that his activities were lawful. Stroz made all checks for the work payable to Lacy Davis or Lacy Davis Roofing. He did this because Davis told him he frequently had difficulty reaching Haywood to cash the checks, and because the business bank account was in Davis' own name. A few of the checks carried a notation at the bottom that payment was for work by Haywood Roofing, but most made no reference to Haywood. Stroz pulled all permits on their jobs reflecting that Haywood Roofing was the licensed contractor. Of the twenty invoices given by Davis to Stroz for the twenty-one jobs, only four were on invoices printed with Haywood's name. The remainder had various other names including "Lacy Davis Roofing," "Lacy Davis" and "Lacy Davis and Benny Guy Roofing Contractors." None of these were licensed as roofing contractors by petitioner.

   
   

4. In June, 1984, a member of Davis' crew was injured and it was discovered Davis had no insurance. Stroz's insurance paid the claim, but an investigation ultimately determined that Davis was unlicensed and had no authority to act on Haywood's behalf. This led to the issuance of the administrative complaint herein.

   
   

5. Respondent has fully cooperated with petitioner, and in fact voluntarily disclosed one job with Davis that petitioner's

   investigation had failed to uncover. He admits he was negligent in not checking out the representations of Davis, but he never intended to violate the law. No consumer was harmed in any way by Davis' work, and there are no complaints concerning the quality of the jobs in question.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

7. In the amended administrative complaint, respondent is charged with aiding and abetting an uncertified or unregistered person (Lacy Davis) to evade the provisions of Chapter 489 in violation of Subsection 489.129(1)(e), Florida Statutes, and with violating Subsection 489.129(1)(j), Florida Statutes, in that he failed in a material respect to comply with a provision of Chapter 489, to wit, he failed to properly subcontract work for which a local examination for a certificate of competency on a license is required pursuant to Subsection 489.113(3), Florida Statutes.

   
   

8. The evidence is clear and convincing that Stroz did in fact aid an unlicensed person (Lacy Davis) in evading the provisions of Chapter 489, and failed in a material respect to comply with a provision of the same chapter. However, such violations were unintentional, and were the result of Stroz innocently relying upon the representations of that unlicensed individual.

   
   

9. Under the foregoing circumstances, a $500 administrative fine is an appropriate penalty.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that Respondent be found guilty as charged in the administrative complaint, and that he be fined $500 to be paid within thirty days from date of the final order rendered in this proceeding.

DONE and ORDERED this 2nd day of July, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1985.

ENDNOTE

1/ Although the original complaint refers to twenty jobs, respondent voluntarily acknowledged that another job had been performed raising the total in question to twenty-one.

COPIES FURNISHED;

Wings S. Benton, Esquire

130 N. Monroe St. Tallahassee, FL 32031

Mr. James S. Stroz 13696 Exotica Lane

West Palm Beach, FL 33414

Docket for Case No: 85-001135

Orders for Case No: 85-001135